1. Suits brought in forma pauperis are governed by 28 U.S.C. §

1915.

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 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GEORGE GILMORE : CIVIL ACTION

:

v. :

:

PHILADELPHIA POLICE OFFICER :

CHARLES LAYTON AND OFFICER :

GOODWIN : NO. 02-4379 

M E M O R A N D U M A N D O R D E R

Plaintiff, an inmate at the State Correctional

Institution at Houtzdale (S.C.I. Houtzdale), seeks to bring a

civil action in forma pauperis,

1 without prepayment of fees or

security therefor, asserting claims pursuant to 42 U.S.C. § 1983. 

The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134,

110 Stat. 1321 (April 26, 1996) (the "Act"), which amends 28

U.S.C. § 1915, establishes certain financial requirements for

prisoners who are attempting to bring a civil action or file an

appeal in forma pauperis. 

Under the Act, a prisoner bringing a civil action in

forma pauperis must pay the full amount of the $150 filing fee. 

Pub. L. No. 104-134 § 804(a)(3). The Act requires a prisoner

seeking to proceed in forma pauperis to submit a certified copy

of his inmate trust fund account statement for the 6-month period

immediately preceding the filing of his complaint so that the

Court can determine how the $150 filing fee will be paid. 

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2. After the initial partial filing fee is paid, the plaintiff

is "required to make monthly payments of 20 percent of the

preceding month's income credited to the prisoner's account. The

agency having custody of the prisoner [is required to] forward

payments from the prisoner's account to the clerk of the court

each time the amount in the account exceeds $10 until the filing

fees are paid." Pub. L. No. 104-134 § 804(a)(3).

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§ 804(a)(1). The prisoner must obtain this statement from the

appropriate official of each prison at which he was or is

confined. Id. The Court must then "assess and, when funds

exist, collect, as a partial payment of any court fees required

by law, an initial partial filing fee of 20 percent of the

greater of-- (A) the average monthly deposits to the prisoner's

account; or (B) the average monthly balance in the prisoner's

account for the 6-month period immediately preceding the filing

of the complaint . . . ."2 § 804(a)(3). 

Plaintiff's inmate trust fund account statement for the

6-month period immediately preceding the filing of his complaint

shows average monthly deposits of $23.36, average monthly

balances of $28.52, and a current balance of $14.28. Based upon

this financial information, an initial partial filing fee of

$5.70 is assessed. The Superintendent or other appropriate

official at S.C.I. Houtzdale, or at any prison at which plaintiff 

may be incarcerated, will be directed to deduct $5.70 from

plaintiff's prison account, when such funds become available, and

forward that amount to the Clerk of the United States District

Court for the Eastern District of Pennsylvania. Thereafter, each

time that the balance in plaintiff's inmate trust account exceeds

$10, an amount no greater than 20 percent of the money credited

Case 2:02-cv-04379-JG Document 2 Filed 07/08/2002 Page 2 of 5
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to plaintiff's account during the preceding month will be

deducted and forwarded to the Clerk of Court until the filing fee

is paid. 

Plaintiff may not have realized when he brought this

civil action that he is required to pay the filing fee, and that

even if the full filing fee, or any portion thereof, has been

paid, the Court must dismiss the case at any time if it

determines that the action is: (1) frivolous or malicious; (2)

fails to state a claim upon which relief may be granted; or (3)

seeks monetary relief against a defendant who is immune from such

relief. § 804(5). If the case is dismissed for any of these

reasons, there is no provision in the Act to allow any portion of

the filing fee to be returned to the prisoner. 

Therefore, plaintiff is given twenty (20) days from the

date of this order to decide whether to proceed with this case in

this Court. If within that time, plaintiff decides not to

proceed with the case, he need not pay the $150 filing fee.

For the foregoing reasons, it is, this day of

July, 2002, hereby ORDERED that:

1. The petition is DENIED WITHOUT PREJUDICE to its

reassertion in accordance with the terms of this order; 

2. If plaintiff files with the Court, within twenty

(20) days, a notice that he wishes to proceed with this action

and thereby obligate himself to payment of the $150 filing fee,

this action will be reinstated; and 

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3. The Clerk of Court shall CLOSE this action

statistically. 

BY THE COURT:

 

 

JAMES T. GILES, CH. J. 

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